GNHW and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 80

GNHW and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 80 (6 February 2025)
Applicant:GNHW
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/9326
Tribunal:Senior Member A Murphy
Place:Melbourne
Date:6 February 2025
Decision:The Tribunal affirms the decision under review.

Senior Member A Murphy
Statement made on 6 February 2025 at 8:43am
Catchwords
MIGRATION – decision of delegate of Minister to refuse to grant the applicant a protection visa – character test – s 501(6)(d) whether there is a risk the applicant would engage in criminal conduct if allowed to remain in Australia – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – legal consequences of decision – extent of impediments if removed – reviewable decision affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment Act 2024 (Cth)
Migration Amendment (Removal and Other Measures) Act 2024 (Cth)
Migration Regulations 1994 (Cth)
Mental Health and Wellbeing Act 2022 (Vic)
Cases
AJL20 v Commonwealth of Australia [2020] FCA 1305
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction no. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)
Statement of Reasons

The Applicant seeks review of a decision made on 14 November 2024 to refuse to grant him a Permanent Protection Visa (Class XA) (the Protection Visa) on the basis that the Applicant does not pass the character test: s 501(1) of the Migration Act1958 (Cth) (the Act).
The Tribunal hearing was held on 22 January 2025 at the Tribunal’s Melbourne Registry. At the hearing the Applicant was unrepresented, and Ms S Liddy of Sparke Helmore Lawyers appeared for the Respondent. The Tribunal heard evidence from the Applicant and his aunt, Ms K, with the assistance of an interpreter in the Nuer and English languages.
For the following reasons I have decided to affirm the decision under review.
BACKGROUND
GNHW (the Applicant) is a 31-year-old male citizen of South Sudan. He arrived in Australia on 25 December 2017 as the holder of a Global Special Humanitarian (Class BA) (Subclass 202) visa.
On 8 January 2020, the Applicant was convicted of intentionally cause injury; drunk and disorderly in public place; drunk in a public place (two charges); fail to answer bail; and contravene a conduct condition of bail. The delegate’s decision records that the Applicant was sentenced by the Magistrates Court of Victoria to 24 months imprisonment and fined $1000.[1]
[1] The Respondent’s Hearing Book lodged 15 January 2025 (‘Hearing Book’) at p 18.
On 24 February 2020, the Applicant’s subclass 202 visa was mandatorily cancelled pursuant to section 501(3A) of the Act.
On 27 November 2020, the County Court of Victoria set aside the sentence of the Magistrates Court in relation to the charge of intentionally cause injury, reducing the Applicant’s sentence to 7 months imprisonment.[2]
[2] Ibid p 80.
On 23 December 2020 the Applicant applied for the Protection Visa.[3] On 17 June 2021 a delegate of the Minister produced a draft Protection Visa Assessment Record which recorded, among other things, that the delegate was satisfied that the Applicant was a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a) of the Act.[4]
[3] Ibid p 107.
[4] Ibid p 32.
On 15 December 2021, the Applicant was re-notified of the decision to cancel his subclass 202 visa. The Applicant made a request for revocation of the mandatory visa cancellation and on 4 October 2022 a delegate of the Minister decided not to revoke the visa cancellation. This was because the delegate was not satisfied that the Applicant passed the character test or that there was another reason why the cancellation decision should be revoked. On 23 December 2022 this Tribunal (differently constituted) affirmed the decision of the delegate not to revoke the mandatory visa cancellation.[5]
[5] Ibid p 383.
On 30 August 2024 the Department issued the Applicant a Notice of Intention to Consider Refusal of the Protection visa (the NOICR) under s 501(1). The NOICR advised that the Department had information suggesting that the Applicant did not pass the character test because in the event he were allowed to remain in Australia, there is a risk that he would engage in criminal conduct in Australia: s 501(1)(6)(d)(i).[6]
[6] Ibid p 151.
On 14 October 2024 the Applicant’s legal representative responded to the NOICR by stating that the Applicant had instructed he did not wish to provide any substantive response to the NOIRC and requested that a decision be made in respect of his application as soon as possible. It was noted that these instructions were provided in the context of apparent frustration and despair at his ongoing detention and the requirement to continuously provide additional information in regard to his visa matters.[7]
[7] Ibid p 207.
The legal representative’s response went on to say that the Applicant should not be found fail the character test under s 501(1)(6)(d) of the Act on the basis that he cannot be considered to pose a risk of engaging in criminal conduct if allowed to remain in Australia. It was submitted that if the Applicant was found fail the character test, the Minister should exercise the discretion to grant the visa having regard to the considerations in Direction 110. A copy of submissions dated 12 March 2021 were attached to the response as well as supporting documents provided in support of the protection visa application.[8]
[8] Ibid p 211.
On 14 November 2024 delegate of the Minister (the Respondent) made a decision under s 501(1) to refuse to grant the Applicant the Protection Visa and that decision is the subject of the current review.[9] On the same date, the Applicant was released from immigration detention into the community on a Bridging Visa R (Subclass 070) visa (the BVR).
[9] Ibid p17.
The Tribunal conducted a directions hearing by telephone on 20 November 2024. The Applicant was unrepresented at that time and did not attend, however his aunt, Ms K, attended the directions hearing. Various programming directions were made on this date. Following the directions hearing the matter was reconstituted to me.
On 2 December 2024 Victoria Legal Aid (VLA) advised that they had been appointed to act for the Applicant in this review. On 11 December 2024, VLA advised the Tribunal that they no longer represented the Applicant in the review but they intended to provide legal submissions to the Tribunal on behalf of the Applicant. They also noted that as the Applicant did not have his own mobile phone number or email address, VLA would assist him by liaising with the Tribunal as required.
The Applicant did not comply with the programming orders requiring him to give to the Tribunal and the Respondent documents he intended to rely at the hearing.
A directions hearing was reconvened on 13 January 2025. The Applicant attended, along with Ms K. VLA did not attend and the Applicant confirmed that he was no longer represented. In light of the fact the Applicant was unrepresented and without an email address or mobile phone number, the Tribunal amended the earlier order to provide that a hard copy of the hearing book be served physically on the Applicant prior to the hearing.
On 17 January 2025 VLA lodged with the Tribunal a Statement of Facts, Issues and Contentions (the Applicant’s SOFIC) and the Applicant’s bundle of documents. Those documents comprised a letter from Monash Health – Refugee Health and Wellbeing dated 14 January 2025; a letter from Monash Health – Dandenong Continuing Care Team dated 14 January 2025, and a statutory declaration made by the Applicant’s aunt, Ms K.
The Applicant’s SOFIC confirmed that VLA had provided the Applicant with limited assistance in the form of preparing the submissions. It noted that full assistance could not be provided to the Applicant due to capacity constraints during the holiday period. It advised that attempts to have the Applicant undergo a risk assessment with the treating psychologist were unsuccessful due to the unavailability of services within the specified 84-day period and the same limitation applied to referrals to alternative services.
The Tribunal hearing was held on 22 January 2025 at the Tribunal’s Melbourne Registry.
On the day of the hearing the application fee had not been paid and Ms K advised the Tribunal that the Applicant had no available funds or source of income as Centrelink was still processing his application for Special Benefit payment. She advised that the family was unable to pay the full application fee and did not have sufficient documentation to establish the Applicant’s eligibility to pay the reduced fee. The Respondent submitted that if the fee remained unpaid, the Tribunal should dismiss the review application pursuant to section 98 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act). The Tribunal directed that the application fee be paid by close of business on 28 January 2025, indicating to the parties that if the direction was not complied with the Tribunal would consider the Respondent’s submission that the review should be dismissed.
As at the time of the Tribunal’s decision, the application fee remained unpaid. In considering the Respondent’s motion that the review application should be dismissed pursuant to s 98 of the ART Act, I consider it would be unreasonable to do so. In making that assessment I am mindful that allowing the application to proceed in the absence of the fee being paid is a discretion that should be accessed only in exceptional circumstances, but I consider such circumstances apply here.
I have had regard to the fact the Applicant was released from immigration detention on 13 November 2024. He rapidly experienced a serious deterioration in his mental health as detailed below, resulting his hospitalisation in late December 2024 and treatment on a compulsory treatment order under the Mental Health and Wellbeing Act 2022 (Vic). While an application has been made for income support payments, it is still being processed. At present the Applicant has no source of income, no bank account and no phone number or email address. He lives with his mother, his sister, his nephew and three nieces and they are not in a position to pay the full application fee.
At present he does not meet the criteria for the reduced application fee. Although he was granted legal aid in the review, VLA ceased acting in the circumstances set out above. He does not hold a health care card or other relevant concession card because his application to Centrelink is still being processed. He is not currently detained in a public institution, although he was at the time the review application was made and while hospitalised in December 2024. He has made an application for financial hardship, but has been unable to provide sufficient evidence of his financial circumstances to date.
In all of the above circumstances I have decided not to dismiss the review application under s 98 of the Act.
The applicant’s medical conditions
Medical evidence before the Tribunal indicates that the Applicant was diagnosed with schizophrenia in August 2020, having experienced symptoms of that condition over the preceding 18 months. He also has a diagnosis of alcohol use disorder, which was recorded as being in remission in a controlled environment during the time he was in prison and immigration detention. A summary of the medical evidence before the Tribunal follows.
Report of Ms C Lechner, clinical psychologist – 20 December 2019
In a psychological report by Ms Lechner dated 20 December 2019 prepared for the Applicant’s sentencing hearing before the Magistrate’s Court of Victoria, Ms Lechner recorded she had assessed the Applicant by video link from Fulham Prison. She recorded that after arriving in Australia the Applicant found that alcohol facilitated his social skills, and he quickly developed an abuse problem. She stated the Applicant was finding it hard to understand the nature of his alcohol addiction and hence his multiple counts of being drunk in a public place.
Ms Lechner reported that there was no evidence of psychotic processes but that the Applicant appeared to have little understanding of the impact that alcohol has had on his mood and behaviour. Ms Lechner recorded that the Applicant presented with symptoms of alcohol use disorder that was in early remission in a controlled environment and noted that it was essential for his rehabilitation that he remained abstinent from alcohol misuse. She stated that medical intervention may be appropriate if he found this a difficult goal to achieve through counselling alone.
She recorded that in respect of his offending, the Applicant conceded that his actions were excessive and that the victim was disadvantaged on account of his disability, but seemed to still believe that it was within his rights to retaliate against the victim whom he perceived to be interfering in his business with a third party, apparently as a result of cultural differences.
Reports of Mr G Coffey, psychologist – 10 September 2020 and 18 October 2020
In a psychological report by Mr Coffey dated 10 September 2020, prepared for the Applicant’s sentencing hearing before the County Court, Mr Coffey stated that he interviewed the Applicant by videoconference on four occasions for a total of 7.5 hours. He set out the Applicant’s personal background in detail as well as the circumstances of his offending.
Mr Coffey noted that the Applicant had experienced ‘a range of abnormal perceptual experiences and associated ideation including transient voices calling his name, fleeting images of people, ideas of reference from the television, and a feeling that he is being chased and is in danger.’ Mr Coffey noted that the psychotic like symptoms had receded appeared to have waxed and waned over a period of 18 months or more. He considered that the symptoms did not warrant a diagnosis of a psychotic illness, rather they appeared to be a decompensation related to anxiety and stress in the context of a vulnerable personality rather than due to an established psychotic illness.[10]
[10] Ibid p 279.
Mr Coffey concluded that the Applicant ‘belongs to a subset of alcohol abusers for whom intoxication causes a significant change in their characteristic behaviour’. He opined that while alcohol intoxication underpinned the Applicant’s offending, his mental health problems made a significant contribution to his abuse of alcohol.[11] In relation to the risk of reoffending Mr Coffey stated:
The probability of recidivism is inseparable from the question of whether [the Applicant] ceases to abuse alcohol.
. . .
It is my opinion that provided [the Applicant’s] abuse of alcohol this address successfully, there is a low risk of further violent offending or offending generally. However without treatment there is a reasonable likelihood that he will relapse into alcohol abuse again and in that context there is a moderate possibility of further offending.[12]
[11] Ibid p 280.
[12] Ibid pp 280-1.
Mr Coffey produced a supplementary psychological report dated 18 October 2020, following a deterioration in the Applicant’s mental health. In that report Mr Coffey noted that the Applicant was transferred to Thomas Embling Hospital on 7 October 2020 for the purpose of psychiatric treatment where he was commenced on anti-psychotic medication. After interviewing the Applicant on 15 October 2020, Mr Coffey reported that he was experiencing a range of psychotic symptoms and that his further assessment of the Applicant as well as additional information from Thomas Embling Hospital had caused Mr Coffey to alter or qualify a number of his opinions.
In particular Mr Coffey noted that the persistence and intensification of his psychotic symptoms made it more likely that the Applicant was suffering from an ongoing psychotic illness, most likely schizophreniform disorder. He noted that was a matter of probability rather than certainty and that a definitive diagnosis was yet to be established. Mr Coffey stated it was clear the Applicant would require ongoing treatment for a psychotic illness, the symptoms of which he described as both distressing and disabling.
Mr Coffey stated the Applicant appeared to have experienced some limited psychotic symptoms prior to the offending which became much more prominent in about June 2020. He noted that this may have impaired his capacity for emotional regulation at the time of the offending and under the sway of heavy intoxication his disinhibition was increased. However he stated that he had no independent evidence that such an effect on emotional regulation was present at the time of the offending, and he did not wish to alter his earlier opinion regarding the Applicant’s mental state at the time of the offending.
Report of Dr F Best, Consultant Psychiatrist, 27 June 2022
A report of Dr Best, Consultant Psychiatrist, dated 27 June 2022,[13] records that she met with the Applicant for approximately 40 minutes by videoconference while he was in immigration detention on 9 June 2023. The Tribunal notes the apparent discrepancy in those dates given that the date of the report is almost a year before the date the assessment was undertaken. Given the multiple references in the body of the report to the assessment having taken place on 9 June 2023, together with the fact the report appears to have been prepared in relation to charges laid against the applicant which were withdrawn by order of the Magistrates Court of Victoria on 23 August 2023, the Tribunal infers that the report should in fact be dated 27 June 2023 and not 27 June 2022.
[13]Ibid p 134.
Dr Best sets out the Applicant’s personal history and past psychiatric history. She noted that on 14 September 2020 a consultant forensic psychiatrist had assessed that the Applicant was in the prodromal or early stages of the schizophrenic illness and that collateral history in the Thomas Embling Hospital medical materials recorded that he was admitted as a security patient under the Mental Health Act2014 (Vic) on 7 October 2020 where he was diagnosed with schizophrenia and treated with antipsychotic medication.
She noted that at the time of her assessment the Applicant appeared to have difficulty in comprehending and responding to the questions he was asked, that his stream of thought was significantly reduced and that he was thought disordered. She recorded that he was not prescribed any medication, having ceased antipsychotic medication two years earlier. She noted he struggled to engage with the assessment, eventually terminating it prematurely on the basis that it was making him anxious.
Dr Best recorded that the Applicant had a diagnosis of schizophrenia, currently in acute episode and that he presented with hallucinations, disorganised speech, and disorganised behaviour. She noted that he reported symptoms of low mood, disturbed sleep weight loss and poor concentration, and recommended that he be assessed for depression by visiting the treating psychiatrist at the detention centre. She also recorded the Applicant’s diagnosis of Alcohol Use Disorder, in sustained remission, in a controlled environment. It was her opinion that he would benefit from drug and alcohol counselling.[14]
[14] Ibid p 442.

She concluded that the Applicant was not fit to be tried as per section 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1977 (Vic). She stated that he was psychotic, disengaged from the assessment process prematurely, and demonstrated a very poor understanding of all aspects of his charges and the court processes and would not be able to follow the course of the trial.[15]
[15] Ibid p 147.
Monash Health Information – 14 January 2025
A letter from Monash Health - Refugee Health and Wellbeing dated 14 January 2025 states that the Applicant attended their clinic on 18 December 2024 and was placed on an assessment order (which the Tribunal understands to refer to an assessment order under the Mental Health and Wellbeing Act 2022 (Vic), and taken to Dandenong Hospital by ambulance and police. It noted he had a history of psychosis, and this current episode was likely a relapse of psychosis secondary to non-treatment and exacerbated by increasing EtOH (alcohol) misuse.
The letter reported that the Applicant had subsequently been placed on a Community Treatment Order which expires on 13 July 2025; that he has a history of schizophrenia and EtOH misuse and that he has been diagnosed with schizophrenia, inorganic psychosis, mental and behavioural disturbance due to EtOH dependence. It records that he was on a Secure Treatment Order from 7 October 2020 until 30 October 2020 and again from 30 October 2020 to 18 November 2020, and that he is currently taking olanzapine in depot form as well as a number of other medications and vitamin supplements. A letter from a social worker with the Dandenong Continuing Care Team dated 14 January 2025 states only that the Applicant is a new patient of that team.
Assessment of medical information
The Tribunal accepts the contents of each of the medical reports before it. In particular, the Tribunal accepts that the Applicant has a diagnosis of schizophrenia and alcohol use disorder, his alcohol use disorder being in sustained remission while the Applicant was in a controlled environment (being prison and immigration detention). The Tribunal accepts the Applicant is currently on a community treatment order under the Mental Health Act 2022 (Vic) and that he receives long-acting injectable anti-psychotic medication (depot).
At hearing the Applicant presented as calm and cooperative but somewhat difficult to engage. He responded to questions in a manner consistent with the information otherwise available in the materials, but in minimal detail. During cross-examination he largely agreed with the propositions put to him, again providing little detail or context in his responses. On a few occasions he responded in more detail and his responses indicated that he understood the questions and their significance.
LEGISLATIVE FRAMEWORK
Section 501 deals with decisions to refuse or cancel a visa on character grounds. Pursuant to s 501(6)(e) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Relevantly to this matter, s 501(6)(d)(i) states that a person does not pass the character test if, in the event that the person were allowed to remain in Australia, there is a risk they would engage in criminal conduct in Australia.
The Character Test
At issue in the review is whether the Applicant passes the character test set out in s 501 of the Act on the basis that if he were allowed to remain in Australia, there is a risk he would engage in criminal conduct in Australia. The assessment of the risk is a forward-looking test, necessarily informed by the Applicant’s past conduct and current circumstances.
As noted above, the Applicant did not provide any substantive response or any new information in regard to his satisfaction of s 501 of the Act in response to the NOICR on 14 October 2024. His legal representative stated the Applicant gave these instructions in the context of frustration and despair at his ongoing detention and the requirement to continuously provide additional documents in regard to his visa matters.
Notwithstanding the Applicant’s stated views, it was submitted that the Applicant should not be found to fail the character test on the basis that he cannot be considered to pose a risk of engaging in criminal conduct in Australia if allowed to remain; and in the event that he is found to fail the character test the Minister should exercise the discretion to grant the visa. Enclosed was a copy of submissions and supporting documents previously provided in support of the Applicant’s protection visa application dated 12 March 2021.
In the Applicant’s SOFIC prepared by VLA and filed 17 January 2025, it was accepted that the Applicant fails the character test under s 501(6)(d)(i) by reason of his criminal offending. As VLA did not attend the hearing, the Tribunal was unable to clarify the apparent inconsistency between the submissions dated 12 March 2021 and the SOFIC. Given that s 501(6)(d)(i) refers not to an individual’s past criminal offending but rather to the risk that the individual would engage in future criminal conduct in Australia, the Tribunal assumes the later submission may have been made in error.
In these circumstances, and consistently with the Applicant’s evidence at the hearing, the Tribunal proceeds on the basis that the Applicant’s position is that set out in the submission dated 12 March 2021, namely that the Applicant should not be found to fail the character test because he cannot be considered to pose a risk of engaging in criminal conduct in Australia if allowed to remain. The Respondent argues that the Applicant does not pass the character test because if he were allowed to remain in Australia, there is a risk that he would engage in criminal conduct in Australia: s 501(6)(d)(i).
At hearing the Applicant gave evidence that he remembered the assault that resulted in his conviction. He said he was drunk and didn’t know what he was doing and the person he was fighting with was not the person he intended to fight. When asked why he thought he wouldn’t re-offend again, he said that he realised what he did in the past was a bad thing and he shouldn’t have done it.
The Applicant’s evidence at the Tribunal hearing was broadly consistent with his written statement dated 4 March 2021 submitted in support of his protection visa application. In that statement he said that he felt very bad about what he did and regretted it and felt sorry for the victim. He said he had drunk a lot that night, didn’t know what he was doing, and when he saw the CCTV footage he didn’t even recognise himself because he would never do anything like that when sober.
At hearing I discussed with the Applicant that one of the things that seemed to have contributed to his offending in the past was his use of alcohol and the Applicant agreed. When asked if he thought this would be different in the future, the Applicant said that if he went to school or got a job he would be able to change his drinking ways.
Ms K stated in her written statement to the Tribunal that the Applicant has recently sought treatment for his alcohol addiction at Monash Health from the Dandenong Community Care Team. She stated that although he is still drinking, he is limiting the number of drinks he has per day and is only drinking at home in the presence of his family members.
The medical evidence from Refugee Health and Wellbeing and the Dandenong Continuing Care Team does not make reference to the provision of any treatment to the Applicant specifically for his alcohol use disorder. When asked at hearing if he was having any medical treatment for his alcohol use disorder, the Applicant said he was. When asked what that treatment involved, he said it had just started and he was not taking any medications for it although he was getting injections every month for his mental health condition.
I accept that the Applicant may have recently commenced some kind of non-pharmacological treatment for his alcohol use disorder as part of the treatment he receives from the Dandenong Continuing Care Team. I also accept that the treatment he is now receiving for his mental health condition may have positive effects on the Applicant’s alcohol use disorder.
However the Applicant gave evidence that he resumed drinking alcohol the day after being released from detention and Ms K gave evidence to the effect that she had seen the Applicant intoxicated since his release from detention and that she continued to be concerned about his drinking.
As well, the material produced under summons from Victoria Police indicates the Applicant has had at least two interactions with Victoria police since his release from detention in November 2024. A LEAP report records that on 23 November 2024, the Applicant was charged with two counts of theft from shop.[16] During cross-examination the Applicant agreed these charges related to the theft of alcohol from Dan Murphy’s. Another LEAP report titled ‘Intent to Summons Report’ indicates the Applicant was interviewed on 2 December 2024 in relation to an alleged sexual assault.[17] Under cross-examination the Applicant agreed that he was interviewed about an alleged sexual assault and said he had not heard anything further since that time. He also agreed that he was given a warning by police on 1 December 2024 after being apprehended for theft. The incident on 1 December 2024 is not referenced in the materials before the Tribunal and there is no other information about any of these matters before to the Tribunal.
[16] Ibid p 1273.
[17] Ibid p 1274.
I am mindful that the information contained in the LEAP reports constitute mere allegations that have not been tested before a court and in respect of which the Applicant has not been convicted. I am also mindful that the Applicant may never be charged in relation to the alleged sexual assault and that some or all of the charges may not proceed to court or may not result in a conviction. However, I remain concerned that the Applicant has continued to have interactions with the police since his release from detention and at least one of those incidents appears to have involved alcohol.
Clause 6(2) of Annexure A (Application of the character test) to Direction 110 provides that the ground set out in s 501(6)(d)(i) is enlivened:
… if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
Clause 6(2) of Annexure A sets out that it is not sufficient to find that the person has engaged criminal conduct in the past, rather there must be a risk that the person would engage in that conduct in the future.
I accept that the Applicant is genuinely remorseful about his prior offending and wishes to change his behaviour and life circumstances. For the reasons set out above I have accepted that the Applicant is now receiving treatment for schizophrenia pursuant to a treatment order under the Mental Health Act 2022 (Vic) and may have recently commenced non-pharmacological treatment for his alcohol use disorder.
However, the Applicant has resumed drinking alcohol since his release from detention. He has been charged with two further offences and been interviewed in respect of a third. The medical professional who has spent the most time with the Applicant, Mr Coffey, has stated that the Applicant’s probability of recidivism is inseparable from the question of whether he ceases to abuse alcohol. Mr Coffey assessed that the Applicant is at moderate possibility of further offending if he relapses into alcohol abuse again and I have accepted Mr Coffey’s evidence in that regard.
In these circumstances the Tribunal finds that there is more than a minimal or remote risk that the Applicant would engage in criminal conduct if allowed to remain in Australia. It follows that he does not pass the character test by virtue of s 501(6)(d)(i).
The issue to be determined is therefore whether the discretion to refuse to grant a protection visa to the Applicant on that basis should be exercised, taking into account relevant considerations in the Ministerial Direction.
THE DIRECTION
Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (s 499(2A)).
The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). It is expressed to apply to the Administrative Review Tribunal in making a decision under s 501 or s 501CA of the Act, and the Tribunal must comply with the Direction.
Principles to guide decision making
Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[18]
[18] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’).
The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.[19]
[19] Ibid cl 7.
The Direction contains five primary considerations, which are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.[20]
[20] Ibid cl 8.
I have considered each one in turn, keeping in mind the principles in cl 5.2 of the Direction.
The protection of the Australian community
The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.[21]
[21] Ibid cl 8.1(1).
The Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[22]
[22] Ibid.
The Direction requires that when considering the need to protect the Australian community, the Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[23] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[24] There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[25]
[23] The Direction cl 8.1.2(2)(a).
[24] Ibid cl 8.1.2(2)(b).
[25] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 [68] (per Moshinsky J); Hambledon v Minister for Immigration and Border Protection [2018] FCA 7 [41] (per Kenny J).
Nature and seriousness of the conduct
As noted above, the Applicant has been convicted of intentionally cause injury; drunk and disorderly in public place; drunk in a public place (two charges); fail to answer bail; contravene a conduct condition of bail. He was sentenced by the magistrates Court of Victoria to 24 months imprisonment and was fined $1000. On appeal, the County Court of Victoria set aside the sentence of the Magistrates Court in relation to the charge of intentionally cause injury, sentencing the Applicant to 7 months imprisonment.[26]
[26] Hearing Book at p 80.
The Tribunal has had regard to the sentencing remarks of His Honour Judge Georgiou which reflect that the Applicant’s assault on the victim on 31 August 2019 included wrestling him to the ground, punching him to the face numerous times, stomping on his head twice and using the victim’s own metal crutch to hit the victim in the face and head region. The attack was captured on CCTV and the judge records the CCTV recording depicts ‘a shocking assault … upon a defenceless and vulnerable victim’.[27] Elsewhere in the sentencing remarks it was noted that the assault spanned four minutes and 51 seconds; that the Applicant continued with the assault despite a witness attempting to intervene and that the victim was a triple amputee who relied on two prosthetic legs and a crutch for mobility.[28] The Applicant is recorded as having struck the victim some 77 times around the head. During cross-examination, the Applicant agreed with the description of the assault set out in the judges sentencing remarks and that the assault was very serious. He also agreed that he continued to drink alcohol after being charged following this incident; that he was arrested again on each of 8 November 2019 and 4 December 2019 and that he was remanded in custody as a result of breaching his bail conditions.
[27] Ibid p 215.
[28] Ibid p 216.

The Respondent submits that the Applicant’s offending falls within cl 8.1.1(a)(i) of the Direction as being a crime of the violent nature against a vulnerable member of the community. The Direction notes that crimes against vulnerable members of the community (such as the elderly and the disabled) are considered by the Australian Government and the Australian community to be serious: cl 8.1.1(b)(ii). The Applicant’s SOFIC similarly concedes that his conviction of ‘intentionally cause injury’ falls within the conduct viewed as ‘serious’ in the framework of the Direction, being a crime committed against a vulnerable member of the community.[29]
[29] Applicant’s SOFIC dated 17 January 2025 [24].
The judge’s sentencing remarks record that there was no Victim Impact Statement. The Tribunal notes the injuries suffered by the victim as set out in the judge’s sentencing remarks are stated to be multiple head and facial wounds which were cleaned and closed with sutures or staples and the victim was discharged after a two-night stay at the hospital. The Tribunal accepts that the assault will have lasting effects on the victim.
The Tribunal accepts that the Applicant has been convicted of only one serious crime, being intentionally cause injury. The Tribunal notes the judge’s comments that had it been within his power he would have imposed a lesser term of imprisonment and a community correctional, but he considered he was unable to do so because of the Applicant’s current status as an unlawful non-citizen.[30] While the Applicant was subsequently charged and convicted of various public order offences, the Tribunal considers that there is no trend of increasing seriousness in the Applicant’s offending in respect of the offences of which the Applicant has been convicted.
[30] Hearing Book at p 226.
It is not in dispute that the intentionally cause injury offence was a very serious and violent offence upon a vulnerable victim. The Tribunal considers that should the Applicant engage in similar conduct in the future, there is a significant risk of harm to members of the Australian community.
Likelihood of the non-citizen engaging in further criminal or serious conduct
The Applicant has been convicted of a number of offences, only one of which resulted in a custodial sentence and involved acts of violence against a person. It is submitted that he does not have a substantial history of criminal offending and cannot properly be said to have a tendency to commit criminal or violent acts. It is noted that the offences occurred in August 2019, and he has not been convicted of further offences since then.[31] That is not strictly accurate, as some of the less serious offending occurred later in 2019, but I accept that he has not been convicted of any serious offences since the August 2019 offending.
[31] Submissions dated 14 October 2024 reproduced in the Hearing Book at p 209.
The Tribunal notes however that the Applicant was interviewed in respect of an alleged sexual assault on 2 December 2024 as reflected in the ‘Intent to Summons Report’, the circumstances of which are entirely unknown to the Tribunal.[32] Corrections Victoria incident reports indicate that the Applicant was involved in a number of incidents while in prison.[33]
[32] Hearing book at p 1274.
[33] Ibid pp 83-104.
The most serious of those took place on 17 June 2020 when the Applicant was recorded as being involved in an altercation with staff while being escorted to his cell, which included grabbing an officer around the neck with the result that code blue was activated and the Applicant was restrained.[34]
[34] Ibid pp 89-90.
Dr Best’s report dated 27 June 2023 refers to charges brought against the Applicant of assault emergency workers; unlawful assault; recklessly cause injury and unlawful assault. Although it is not entirely clear on the available material, the Tribunal infers that those charges arose out of the incidents on 17 June 2020 recorded in the Corrections Victoria report and the charges were withdrawn or struck out as a consequence of Dr Best’s conclusion that the Applicant was not fit to be tried as per section 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1977 (Cth). In making this assessment, the Tribunal notes that charges of unlawful assault and assault prison officer on duty on 17 June 2020 are recorded as being struck out/withdrawn by order of the Magistrate’s Court of Victoria dated 23 August 2023.[35] There is no reference to the other charges mentioned in Dr Best’s report in any of the materials before the Tribunal.
[35]Ibid p 81.
In a submission dated 12 March 2021 it was submitted that although the Applicant had demonstrated aggressive behaviour on a number of occasions while in prison, in the unique and oppressive environment that is prison he has mostly avoided major incidents and chosen not to engage in antisocial behaviour with other detainees and prison staff.[36]
[36] Ibid pp 202-3.
The Applicant did not provide a written statement to the Tribunal in respect of the current review, however the Tribunal has had regard to his earlier statement dated 4 March 2021. He referred in that statement to his difficulties studying after arriving in Australia given that he didn’t speak English and the fact he had applied for many jobs without success. He was living in small and congested accommodation with his large family which led to him trying to avoid being at home and staying out more than usual. He stated that when he mixed with the wrong people his alcohol consumption increased dramatically, particularly when he was with people who were also from South Sudan. He said he had no prior criminal history, his mood was not good, his Centrelink payments had stopped, and he was feeling suffocated.
The Applicant said that in prison he tried to keep quiet and stay out of trouble, however there were a few people who knew and were relatives of the victim and they tried to provoke him into fights. He tried hard not to engage with them which was not always possible. While in prison he was put in isolation twice, each time for about a month and he heard voices in his head. He was having a very difficult time because his visa had been cancelled and he was worried about being sent back to South Sudan.
The Applicant stated that he knew he had made a mistake and he regretted his actions every day. He wants to call Australia his only home and if granted a visa he will seek professional help to ensure he never commits an offence again. He says he has the support of his family, especially his aunt Ms K, and to his lawyer has referred him to Afri-Aus Care and Foundation House. He had already spoken to somebody from Afri-Aus Care and would engage with their services to help him with his mental health and alcohol problems. He wants to turn his life around and be able to look after himself and his family and be a better member of the Australian community. If released, he will not reoffend, and states that he does not pose a danger to the Australian community. He is sorry to everyone who has suffered because of his actions and the Australian community for his wrongdoing.
I have accepted the Applicant is presently subject to a community treatment order which authorises compulsory treatment for his mental health condition. I also accept that he is remorseful for his offending; that he is genuinely trying to reduce his alcohol intake and that he has recently commenced or will shortly commence treatment for his alcohol abuse disorder. For the reasons set out above I have found that the Applicant is not currently taking medication for his alcohol dependence.
I accept the Applicant’s evidence during the hearing that he receives support from his family, particularly his mother, sister, and Ms K. I accept that he and his family have some support from their local church, although the evidence available to me about that is now almost three years old.[37] I also accept that the time the Applicant has spent in prison and immigration detention with the threat of deportation is a significant deterrent from further offending. There is no information before the Tribunal that would suggest that the Applicant has engaged with Afri-Aus Care or Foundation House since his release from detention.
[37] Hearing Book pp 156-8.
It is conceded that despite the Applicant’s efforts, he has relapsed into alcohol abuse since returning to the community.[38] I accept that relapse occurred in the context of his untreated mental health issues and the challenges in adapting to life in the community after a significant period of detention.
[38] Applicant’s SOFIC lodged 17 January 2025 [30].
The protection visa applied that is the subject of the review would, if granted, allow the applicant to remain permanently in Australia. As set out above, the Applicant has had at least three interactions with Victoria police since his release from immigration detention in November 2024. He has been charged with two counts of theft (shop steal) arising out of an incident on 23 November 2024 and he received a warning from police on 1 December 2024 after being apprehended for theft. He was interviewed on 2 December 2024 in relation to an alleged sexual assault. I remain concerned that the Applicant has continued to have interactions with the police since his release from detention.
I have found that the Applicant’s offending which led to the conviction of intentionally causing injury constitutes a very serious assault upon a vulnerable victim. I have accepted Mr Coffey’s evidence to the effect that the Applicant is at low chance of further offending provided his alcohol abuse is addressed, but that there is a moderate possibility of further offending if the Applicant does not receive treatment and lapses into alcohol abuse again.[39] It is not in dispute that the Applicant has relapsed into alcohol use since his release from detention. For these reasons I find that there is a moderate likelihood that the Applicant will reoffend, and that the risk to the community is in the moderate range.
[39] Hearing Book at p202.
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs strongly in favour of refusing to grant the protection visa.
Family violence committed by the non-citizen
Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
The Direction states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.[40]
[40] The Direction cl 8.2(1).
The materials before the Tribunal indicate that the Applicant was named as the perpetrator in a family violence report dated 24 July 2019. The report notes that the affected family members were the Applicant’s sister and her children who were under the age of 18 at the time. A LEAP report records that the Applicant returned home late at night appearing argumentative and alcohol affected and had an argument with his sister after she asked him to be quiet because children were sleeping. During that argument the Applicant picked up a butter knife from the kitchen and started waving it around. The report notes that the Applicant did not make direct threats to his sister or anyone else in the household. The police applied for a family violence safety notice.[41] During cross-examination the Applicant agreed that incident had occurred and that he was the subject of a family violence safety notice.
[41] Hearing Book at p 1275.
I accept the Applicant was never charged with any offence relating to this incident, nor is there any other evidence of violence towards any member of his family. I give this factor some small weight in favour of refusing to grant the protection visa.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has lived in Australia for seven years, after arriving at age 24. He lives with his mother, sister, and four nephews and nieces. His aunt, Ms K, and uncle are also in Australia and are supportive of the Applicant and his family. At hearing he gave evidence that he kept in touch with his nephews and nieces while in detention and that they visited him in detention.
The materials indicate that the Applicant’s father, who was an English teacher, went missing in about 2012 for 2013 in Cairo and that one of his sisters died by suicide before the family travelled to Australia. The Applicant has no known living relatives remaining in South Sudan, while another sister lives in the Netherlands. I accept that should the Applicant not be granted a visa and allowed to remain in Australia permanently, the impact on his immediate and extended family will be significant and exacerbated by the loss the family has already endured.
Other ties to the community
The Applicant undertook English language studies after arriving in Australia, but was unable to find employment. At hearing he told me that he had some friends, who he went out with from time to time.
The Tribunal assesses that the Applicant has strong ties to his immediate and extended family and lesser ties to the community. As noted above, the Applicant has no known living relatives in South Sudan. I give this factor significant weight in favour of the grant of the protection visa.
Best interests of minor children in Australia affected by the decision
Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under cl 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501 of the Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
Clause 8.4(4) of the Direction goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors which include:[42]
·the nature and duration of the relationship between the child and the non-citizen, noting less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
·the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;
·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·whether there are other persons who already fulfil a parental role in relation to the child;
·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
·evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[42] The Direction cl 8.4(4)(a)-(h).
As noted above, the Applicant resides with the children of his sisters. Only two of those children are minors, being his youngest nieces who are both 10 years old. It is submitted that the Applicant enjoys a close relationship with those children, who see him daily and have known him for their entire lives.
Little information has been produced in the current review about the Applicant’s relationship with these children. However, the earlier Tribunal reviewing the cancellation of the Applicant’s Subclass 202 visa, heard evidence that three of the Applicant’s nieces and nephews had no living parent, while the fourth had no living father. The Tribunal in that case accepted that the Applicant played a key male parental role in the lives of the four children, all of whom were minors at the time of that Tribunal’s decision.[43]
[43] Hearing book at p 416.
When asked about his relationship with his nieces and nephew now, the Applicant said they got on really well and there was no problem. When asked during cross-examination if he played a parental role in respect of his younger nieces, the Applicant said that he did. When asked to explain that role, the Applicant said he sometimes advised them not to do bad things and provided them with guidance.
I accept that the Applicant has played an important role to his nieces in the past, being the only adult male in the household. There is no information available to the Tribunal about the views of his nieces or the likely effect on them of any separation from the applicant. I consider that the applicant’s capacity to provide care for his nieces at present is necessarily reduced by his mental illness and alcohol use disorder, but that with appropriate treatment and support he could again play a positive and important role in their lives.
For the reasons set out below I have found that the applicant cannot be returned to South Sudan and there is at present no identifiable country to which he could lawfully be removed, although this may change in future. In such circumstances is not possible to assess the other ways in which the applicant and his nieces might maintain contact.
In the above circumstances I find that the best interests of the Applicant’s nieces are served by the grant of the protection visa and I give this factor moderate weight in favour of the grant of the protection visa.
Expectations of the Australian Community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.

Clause 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.[44]
[44] The Direction cl 8.5(2).
Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Clause 8.5(4) of the Direction requires the Tribunal to proceed on the basis of the government’s views as to the expectations of the Australian community as expressed in paragraph 8.5.
The Federal Court of Australia has held that the assessment of community expectations is not a matter of evidence and does not turn on the personal circumstances of the individual non-citizen.[45]
[45] RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876 [56].
The Tribunal is guided by the principles in cl 5.2 of the Direction which direct that the safety of the Australian community is the highest priority. For the reasons set out above I have found that there is a moderate likelihood that the Applicant will reoffend, and that the risk to the community is in the moderate range. In the circumstances of this case, I give this factor moderate weight in favour of refusing to grant the protection visa.
Other considerations
Clause 9 of the Direction states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
d)impact on Australian business interests.
Legal consequences of decision under section 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[46]
[46] Ibid cl 9.1.
If the protection visa is granted, the legal consequence of the decision is that the Applicant will again be a permanent resident of Australia in the manner that he was before his global humanitarian visa was cancelled. He will not be a removal pathway non-citizen, subject to removal to a third country in the manner discussed below, nor will he be required to comply with the conditions of the BVR he currently holds.
If the mandatory visa cancellation is not revoked, there are a range of potential legal consequences under s 501 and related provisions, including:
- The likelihood of becoming an unlawful non-citizen subject to detention and/or removal;[47]
- Refusal of other visa applications and cancellation of other visas;[48]
- A prohibition on applying for other visas;[49] and
- Periods of exclusion and special return criteria may apply.[50]
Generally, if a visa is cancelled, its former holder becomes an unlawful non-citizen immediately after cancellation.[51] Under s 189 of the Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[52]
[51] Ibid s 15.
[52] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112]-[122].
The Direction provides that non-citizens covered by a protection finding must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.[53]
[53] Ibid cl 9.1.1(2).
In this case, the Applicant is the subject of a protection finding made by a delegate of the Minister on 22 November 2024. He has already been granted a BVR and released from immigration detention by the Department and he will not become unlawful as a result of the cancellation. For these reasons the Applicant will remain in the community following the Tribunal’s decision, either as the holder of a BVR or as the holder of the protection visa.
For as long as the Applicant is the subject of a protection finding, he cannot be removed to South Sudan regardless of whether he is the holder of a BVR or as the holder of a protection visa.
I do not accept the submission to the effect that if the protection visa is cancelled, there is a real chance the Applicant’s protection finding will be set aside and his removal to South Sudan will become possible.[54] Section 197D does not empower the Minister to simply set aside a protection finding, rather it requires the Minister to be satisfied that the Applicant is no longer a person in respect of whom any protection finding would be made.[55] Such a decision requires an assessment that the Applicant is no longer a person to whom Australia owes protection because they no longer meet the criteria set out in 36(2) of the Act such a decision is reviewable by this Tribunal.
[54] Applicant’s SOFIC lodged 17 January 2025 [63].
[55] Section 197D(2) of the Migration Act 1958 (Cth).
In this case a delegate of the Minister made a protection finding on 22 November 2024, concluding that the Applicant had a well-founded fear of persecution in South Sudan for reasons of his ethnicity. That protection decision record canvassed relevant country information and concluded that Nuer people such as the Applicant have a well-founded fear of persecution throughout South Sudan for reasons of their ethnicity. The delegate recorded that she was satisfied that the Applicant faced persecution for reasons of his Nuer ethnicity alone, but also considered that the seriousness of that persecution would be further exacerbated by his mental illness.[56]
[56] Hearing book at p 45.
In order for the Applicant’s protection finding to be set aside under s 197D, a relevant decision maker would need to conclude that the Applicant no longer faces a well-founded fear of persecution or a real risk of significant harm in South Sudan. In view of the fact that the Applicant’s protection claims have been so recently assessed by a delegate of the Minister, I do not consider there to be any real likelihood that this will occur as a consequence of the Tribunal’s decision as suggested by VLA.
I accept that if the Applicant is refused the protection visa, there will be significant restrictions on his ability to apply for any other kind of visa, including the statutory bars contained in s 48A (which prevent him from making a further application for a protection visa) and s 501E of the Act (which prevents him applying for any other kind of visa other than a BVR unless he leaves the migration zone). As noted above, the Applicant already holds a BVR and in any case, a non-citizen can only apply for a BVR if invited to do so.
It is not in dispute that following the High Court of Australia’s decision in NZYQ,[57] the Applicant’s ongoing immigration detention was no longer authorised and he was released on a BVR.[58] That situation could change if a legitimate non-punitive purpose for his re-detention were to be identified in respect of the Applicant, such as his potential removal to a third country or enabling a further visa application.
[57] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37.
[58] Applicant’s SOFIC lodged 17 January 2025 at [53]; Respondent’s SOFIC at [63].
As the holder of the BVR the Applicant is subject to a range of conditions, some of which I accept to be particularly onerous in his circumstances. In particular he is required to report to the Department daily by telephone. When asked how he was managing these conditions, given he does not have his own telephone number or email address, the Applicant stated that he had given the Department his mother’s phone number and told them that if they wanted to contact him they could ring her number. I accept that the applicant’s personal circumstances mean that it will be difficult for him to comply with the daily notification condition applied to his BVR.
Other conditions attached to the BVR include that he notify the Department of any change to his address, his material circumstances, and his employment, that he obtain approval before undertaking certain kinds of employment or activities, and that he is prohibited from undertaking other kinds of specified employment and activities. The conditions on his BVR do not include a curfew or a monitoring device.
The failure to comply with any of the visa conditions have potentially very serious consequences for the Applicant, including that he can be convicted of a criminal offence relating to the breach of the conditions (ss 76B, 76C, 76D, 76DAA, 76DAB and 76DAC) for which a court must impose a minimum sentence of one year imprisonment (s 76DA).
Further conditions require that the Applicant assist with, report for, and facilitate his own removal from Australia. Having had regard to the medical evidence referred to above, which refers to the Applicant’s fears of being separated from his family and returned to Sudan, I accept those conditions are frightening and distressing for the Applicant.
The Applicant’s SOFIC argues that it is no longer true that persons holding BVRs will remain in the community irrespective of the Tribunal’s decision to affirm or set aside a character cancellation, because of amendments to the Migration Act by the Migration Amendment Act 2024 (Cth) (Amendment Act) and the Migration Amendment (Removal and Other Measures) Act2024 (Cth) (Removal Act) which came into effect on 5 December 2024. In particular, it is submitted that the Applicant is now a ‘removal pathway non-citizen’ under s 5(1) and s 199B of the Act and his removal to a third country would become legally possible notwithstanding the protection finding which prohibits his removal to South Sudan.[59]
[59] Applicant’s SOFIC lodged 17 January 2025 [55].
The Applicant’s SOFIC argues that the legislative changes that have been made by Parliament, and the publicly reported statements of the Minister to the effect that the Australian government does not want people like the Applicant in Australia at all, are evidence that the government is determined to achieve a removal outcome for such persons. It is submitted that while it is unclear whether a third country will become available to receive the Applicant, it is fanciful to imagine that any potential third country will be a well-resourced, industrialised country with legal protections for persons transferred there. It is argued there are no guaranteed minimum standards of treatment upon removal to a third country and conditions in the country are likely to be highly oppressive and include detention.[60]
[60] Ibid [56]-[61].
At hearing the Respondent did not dispute VLA’s analysis of the legal effects of the legislative changes, but submitted that her instructions were that there were no third country removal options for the Applicant.
I accept that the while section 199D prevents the Minister from giving a removal pathway direction to any country in respect of which that non-citizen has a protection finding, s 198AHB allows a non-citizen to be removed to a foreign country that is a party to a third country reception arrangement.
I further accept that while the Commonwealth is not known to have entered into a third country reception arrangement with any country at present, the legislative provisions passed by the Australian Government give it the power to enter into such arrangements. I accept that should it do so, the Minister may exercise his or her powers to remove the Applicant to such a country. As no such country has been identified, it is not possible to assess the level of legal protections or conditions that persons removed to any such country might encounter.
If the visa remains cancelled and the Applicant is not removed to a third country, he will remain on the BVR indefinitely. While the Applicant can access Medicare and Centrelink as the holder of the BVR, I accept that he will not be able to access NDIS should he apply in the future. While the BVR permits him to obtain employment (within the conditions set out above), I accept his opportunities for employment will be greater if he is the holder of a permanent visa. I accept that while he is on a BVR, he will not have access to government loans for tertiary studies.
In these circumstances, I consider that the legal consequences of the decision, whether or not the Applicant is removed to a third country or remains in Australia as the holder of a BVR, weigh strongly in favour of granting the protection visa.
Extent of impediments if removed
Clause 9.2 of the Direction provides that taking into account the matters identified in sub-clauses 9.2(1)(a), (b) and (c) of the Direction, the Tribunal must consider the extent to which the Applicant would face an impediment, or impediments, in establishing himself and maintaining basic living standards if removed from Australia to their home country in the context of what is generally available to other citizens of that country. The matters identified under sub-clauses 9.2(1)(a), (b) and (c) are:
- The Applicant’s age and health;
- Whether there are substantial language or cultural barriers; and
- Any social, medical and/or economic support available to the Applicant in their country.
In this case the Applicant is a 31-year-old male with very significant mental health problems as referred to elsewhere in these reasons.
As the Applicant is subject to a protection finding in respect of South Sudan, he cannot be removed to that country. For the reasons set out above, I have not accepted there to be any real likelihood that the Applicant’s protection finding will be set aside pursuant to s 197D as a consequence of the Tribunal’s decision. Rather I consider that as there is no real prospect of the Applicant’s removal to any identifiable country in the reasonably foreseeable future, this consideration should be regarded as neutral.
Impact on Australian business interests
Clause 9.3 of the Direction states:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence that refusing the Applicant a protection visa would compromise the delivery of any major project or important service in Australia and I weigh this consideration as neutral.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Act, and I must consider whether he should be granted the protection visa, having regard to the primary and other considerations in the Direction.
Clause 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed.
There has been extensive judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Ministerial Directions (considering a number of Ministerial Directions preceding the Direction).[61]
[61] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (‘CRNL’) said ‘[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.’[62]
[62] [2023] FCAFC 138 [28].
In determining the weight to be applied to each consideration, I have considered the primary and other considerations and weighed them in light of the evidence and findings using the guidance provided by the Direction.
Greater weight must generally be given to the protection of the Australian community than other primary considerations. Greater weight will also generally be given to primary considerations. In examining what this requires, the Full Court in CRNL states that this means greater weight will be given unless there is some reason why that general approach should not be adopted.[63] In the circumstances of this case I consider the general approach should be adopted in that greater weight is given to the protection of the Australian community and the primary considerations.
[63] Ibid [27].
In bringing together the considerations in the manner required by CRNL, I give the primary consideration of the protection of the community greater weight than other primary considerations.
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and the risk to the Australian community should the Applicant commit further offences or other serious conduct, I give this very significant weight in favour of refusing to grant the protection visa. The two other primary considerations that weigh in favour of refusing the grant of the visa are that on one occasion the Applicant’s past conduct involved family violence and that the Australian community expects that he will not be granted the visa. I have given those considerations some small weight and moderate weight respectively in favour of refusing to grant the visa.
The remaining two of the primary considerations weigh in favour of granting the visa. I have found that the strength, nature and duration of the Applicant’s ties to Australia weigh significantly in favour of granting the protection visa, while the best interests of the Applicant’s nieces weigh moderately in favour of granting the visa.
In assessing the other considerations, I have found that the legal consequences of the decision weigh significantly in favour of the grant of the protection visa. I have assessed the considerations relating to the extent of impediments if removed and the impact on Australian business interests to be neutral.
As the Direction requires me to give the consideration of the protection of the Australian community greater weight than the other primary considerations, I conclude that the combined weight of the considerations that weigh in favour of refusing to grant the visa outweigh those that favour granting the visa. I conclude that the primary considerations of the protection of the community, family violence and expectations of the Australian community outweigh the considerations that favour granting the visa.
I have therefore affirmed the decision under review.

158.    I certify that the preceding 157 (one-hundred and fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Murphy

.................................[SGD].......................................
Associate
Dated: 6 February 2025
Date of hearing:  22 January 2025
Applicant:                    Self-represented
Solicitors for the Respondent:  Sparke Helmore